Opinion
DOCKET NO. A-3036-11T2
01-08-2013
K.R., Plaintiff-Appellant, v. R.E., Defendant-Respondent.
Patton Boggs, L.L.P., attorneys for appellant (Daina C. Borteck, Riccardo DeBari and Alison MacLaren, of counsel and on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Maven.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-1133-12.
Patton Boggs, L.L.P., attorneys for appellant (Daina C. Borteck, Riccardo DeBari and Alison MacLaren, of counsel and on the brief).
Respondent has not filed a brief. PER CURIAM
This case involves plaintiff's unchallenged appeal of the denial of a Final Restraining Order (FRO) that she sought against her husband, defendant, under the Prevention of Domestic Violence Act of l99l (Act), N.J.S.A. 2C:25-17 to -35. Plaintiff challenges the court's failure to give appropriate weight to the extensive history of prior acts of domestic violence, and argues the record overwhelmingly supports a finding in her favor. We agree and reverse and remand for entry of an FRO.
The uncontested facts as found by the trial judge are as follows. Plaintiff and defendant were married in August 2008 and, for a time, rented an apartment together in Belleville, New Jersey. The lease was in defendant's name, but both paid a share of the rent. The parties separated in April 2011, when each began to sleep in different bedrooms. Defendant moved out of the marital residence on October 2, 2011, and plaintiff continued to live with her two children, ages twelve and thirteen, from a previous relationship.
On October 16, 2011, at approximately 5:00 p.m., plaintiff observed the uninvited defendant inside of her apartment. Plaintiff became disoriented and asked defendant to leave because she feared for her and her children's safety. Defendant refused, maintaining that it was his home because he continued to pay some of the rent. He insisted that he needed to speak with plaintiff and retrieve his belongings. Plaintiff again insisted that defendant leave. Defendant refused and accused plaintiff of concealing a man inside of the apartment. Plaintiff fearfully fled to the front porch and defendant left. The next morning, plaintiff discovered her car had been vandalized and filed a police report. Due to her suspicion and fear from defendant's uninvited visit the previous day, plaintiff filed for a Temporary Restraining Order (TRO), which was granted.
At the FRO hearing, plaintiff testified that during prior arguments, defendant grabbed or "bear hugged" plaintiff, forcing her to listen to him. Defendant also forcefully jabbed his four forefingers against plaintiff's skin when emphasizing a point during arguments and, in doing so, occasionally bruised plaintiff. He broke household objects during arguments and destroyed plaintiff's clothes that "looked good on her" by tearing them into pieces.
On one occasion in August 2011, defendant dragged plaintiff by the arm into the bedroom, causing her to fall and bruise her elbow. One month later, defendant drove into the driver's side door of plaintiff's parked car while she was inside.
On October 1, 2011, plaintiff attended a meeting at her sister's house. The intoxicated defendant called plaintiff several times, accusing her of being there with other men. Shortly thereafter, defendant arrived at plaintiff's sister's house, but her sister refused to let him enter the home. Defendant threatened that he would crash into plaintiff's car again.
For several months prior to October 2, 2011, plaintiff begged defendant to leave the marital home, but he stated that he would only leave if he were dead. Plaintiff testified that she believed defendant would do everything he could to be with her, including killing any men who were with her. Plaintiff further testified that she feared defendant had suicidal tendencies and was capable of killing her and her children. On one occasion, plaintiff observed defendant swallowing an entire bottle of pills and then vomiting them up. On the night of the car collision, defendant walked into plaintiff's bedroom with a belt around his neck, which plaintiff struggled to remove.
After defendant finally agreed to leave the marital residence on October 2, 2011, he continued to call and text plaintiff approximately twenty to thirty times daily.
At trial, defendant did not contest the salient facts presented by plaintiff. He testified that it hurt him greatly to see plaintiff with another man, and as a result, he absolutely could not control himself, his jealousy, or his behavior towards plaintiff. He acknowledged that he has mental problems and had attempted suicide more than once. Defendant testified that he did not object to the entry of an FRO.
The trial court concluded that defendant's past conduct towards plaintiff constituted domestic violence. The court noted that his present conduct, which was prompted by jealously and further induced by alcohol, was volatile and escalating after he stopped attending his Alcoholics Anonymous (AA) meetings. Notwithstanding those findings, the court denied granting an FRO based on its ultimate finding that plaintiff failed to establish that defendant committed any predicate act of domestic violence on October 16, 2011.
On appeal, plaintiff contends that the court failed to give appropriate weight to defendant's uncontested past acts of domestic violence and erred in finding that defendant's current conduct did not constitute harassment, terroristic threats and criminal trespass.
A reviewing court is bound by a trial court's findings "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Inc. Co., 65 N.J. 474, 484 (1974)). Generally, we give particular deference to the Family Part, because it "possess[es] special expertise in the field of domestic relations." Cesare, supra, 154 N.J. at 412. A trial judge's credibility determinations are entitled to great deference as they "are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). By the same token, we are not bound by a trial court's construction of legal principles, or its application of the law to the facts. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995); In re Adoption of a Child by P.S., 315 N.J. Super. 91, 107 (App. Div. 1998). Moreover, in the exercise of the trial court's discretion, any error may be reversed if the resultant ruling goes so "wide of the mark" that it "cannot stand." Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000); Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990).
We begin our review by restating the well established principles that govern this case. When determining whether to grant an FRO pursuant to the Act, the judge must apply the dual-element test set forth in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. Second, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126.
Whether a restraining order should be issued depends on the seriousness of the predicate offense, see Cesare, supra, 154 N.J. at 402, on "the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse[,]" and on "whether immediate danger to the person or property is present." Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. l995); see also Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. l995); N.J.S.A. 2C:25-29(a). Moreover, "[b]ecause a particular history can greatly affect the context of a domestic violence dispute, trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard." Cesare, supra, 154 N.J. at 405.
Governed by these principles, we are satisfied that when viewed in the context of the couple's entire relationship, and especially defendant's past violent conduct against plaintiff, defendant's actions on October 16, 2011, particularly his refusal to leave upon plaintiff's insistence, his accusations against her, his acknowledged inability to control his jealousy and behavior toward plaintiff, and the damage to her car in the immediate aftermath of this confrontation, constitute the predicate acts of harassment, N.J.S.A. 2C:33-4, and criminal trespass, N.J.S.A. 2C:18-3. See Cesare, supra, 154 N.J. at 405 (holding that a defendant's prior abusive acts should be considered "regardless of whether those acts have been the subject of a domestic violence adjudication"). The failure to accord appropriate weight to defendant's past abusive acts in assessing his present conduct, we conclude, was clear error.
Having determined that the predicate acts were established, we now address the second Silver prong, namely the need for the FRO for plaintiff's protection from future acts or threats of violence. Supra, 387 N.J. Super. at 126. While the focus of this inquiry is on the party seeking protection, the trial judge focused on defendant and credited him for acknowledging his actions. She noted that "[d]efendant . . . accepted his wrongdoings and he acknowledges that he has mental problems and that is why he resumed attending AA meetings, is attending church regularly and is seeing a psychologist." The record does not reflect that defendant produced any evidence to support his testimony or any implied claim that these purported remedial actions are actually occurring or will ameliorate any future risk or harm to plaintiff. Moreover, the actions by defendant and his refusal to accept the breakdown of the marriage are much more that mere marital contretemps. As such, we conclude that the judge's acceptance of defendant's claimed contriteness was conclusory and not anchored in any specific findings of fact.
The trial judge did not reach this phase of the analysis upon her determination that the predicate acts had not been established.
Focusing as we must on the plaintiff, we conclude that the record clearly supports her need for protection. Plaintiff's fear, particularly during defendant's uninvited presence in the home, was both objectively and subjectively reasonable given the recent history of assaultive behavior and threats to harm her and her children, himself, and any other persons. She credibly expressed a real and present fear that defendant would react out of extreme jealousy or strike out in an alcohol-induced rage, as he has in the past. According to the Legislature, the Act was enacted "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Here, plaintiff is entitled to such protection.
Accordingly, we reverse and remand the case for entry of a Final Restraining Order.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION